Allen v. State

53 So. 498, 98 Miss. 192

• Court: Mississippi Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinion

McLain, 0.

Lula Allen was convicted in the police justice court of the city of Jackson, for an alleged violation of the ordinances of the city of Jackson, for keeping for sale intoxicating liquors. From this judgment she appealed to the circuit court of the first district of Hinds county, Miss. At the June term, 1910, of said court, she was tried, convicted, and sentenced, and from this judgment she appeals to this court.

At the trial in the circuit court she offered no witnesses in- her behalf; but, when the state had rested its case, she moved “the court to exclude the evidence of the city of Jackson, and instruct the jury to find the defendant not guilty, for the following reasons: Because the transcript of the record is certified by A. P. Lusk, clerk, by T. J. Wharton, deputy clerk, and not by the police justice, as required by the law, and because the evidence fails to make out a case against the defendant.” This motion was overruled by the court, and the cause was submitted to the jury. When the defendant made the above motion, the court properly refused to instruct the jury to find defendant not guilty; but, after it was called to his attention that the record was not correctly certified to, he should have dismissed the case, for the want of jurisdiction of the matter.

Section 85, Code of 1906, provides that: “The justice of the peace, mayor or police justice of any city, town or village, from whose decision an appeal shall be taken, shall at once transmit, to the clerk of that court, a certified copy of the record of the proceedings, with all the original papers and process in the case, and the original appeal bond given by the appellant, and the clerk shall docket the same, and shall be entitled to the same fees, upon such appeals, as for similar services in suits originating in said court. The justice, mayor, or police justice, of any city, town or village, shall, at all times, be allowed to amend his" return according to the facts.” This court, in passing upon this section in the case of City of Greenwood v. Weaver, 50 South. 981, speaking through Chief Justice Mayes, said: “This section clearly contemplates that the record shall be certified to by the justice of the peace, mayor or police justice; and, this being the requirement of the statute, the certification by any other person does not answer the requirement of the statute. ’ ’

The appeal from the police justice of the city of Jackson, to the circuit court, was not certified to as required by law. We think, for this reason, this case should be reversed and remanded, with instruction that the defendant be permitted to perfect the record, if she desires to do so. Reversed and remanded.

. Per Curiam. For reasons set forth in the above opinion by the commissioner, the case is reversed and remanded.